R v Fox - [2011] SASC 224

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v FOX
[2011] SASC 224
Judgment of The Honourable Justice Gray
9 December 2011
MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Application to vary a supervision order brought pursuant to section 269P of the Criminal Law Consolidation Act 1935 (SA) – where the defendant had been found not guilty of attempted murder by reason of mental incompetence – where the defendant had previously been declared to be liable to supervision pursuant to Part 8A of the Criminal Law Consolidation Act and an order was made committing the defendant to detention with a limiting term of 13 years being fixed – the variation of the supervision order sought was that the order ceased to provide for detention but instead allowed for the defendant’s release on licence to the Grove Closed Forensic Rehabilitation Unit from where deportation proceedings could proceed to allow the defendant to be deported to the United States of America.
Held: Application dismissed – allowing the defendant to be released on licence and for deportation to occur would, without any degree of control, place the community in this State and in the United States at risk – the defendant’s release would not be consistent with the safety of the community.
Criminal Law Consolidation Act 1935 (SA) s 5F, s 269A, s 269O, s 269P, s 269Q, s 269S, s 269T, s 269V, Pt 1A and Pt 8A; International Transfer of Prisoners Act 1997 (Cth) s 4(1), s 5, s 6, s 10, s 16, s 18 and s 47, referred to.
R v Bober (No 3) (2010) 107 SASR 165; R v B, P (2007) 97 SASR 448; R v Ridings [2008] SASC 366; R v T (1999) 75 SASR 235; R v MacPherson [2010] NSWDC 132, considered.

R v FOX
[2011] SASC 224
Criminal
GRAY J.

This is an application to vary a supervision order.
Introduction
On 1 October 2008, the applicant, Jason Marcel Hamilton Fox, was found not guilty of the offence of attempted murder by reason of mental incompetence. Mr Fox was subsequently declared to be liable to supervision pursuant to Part 8A of the Criminal Law Consolidation Act 1935 (SA) and an order committing Mr Fox to detention pursuant to section 269O(1)(b)(i) was made.
On 4 December 2008, pursuant to section 269O(2) of the Act, a limiting term of 13 years was fixed. Since that date, Mr Fox has been detained pursuant to that order and his limiting term has continued to run.
On 26 May 2010, Mr Fox applied for a variation of the supervision order pursuant to section 269P of the Criminal Law Consolidation Act so that the order ceased to provide for detention but instead allowed for the release of Mr Fox on licence to the Grove Closed Forensic Rehabilitation Unit, an address of James Nash House located in the grounds of the Glenside Campus of the Royal Adelaide Hospital, from where he could be placed in the custody of the Department of Immigration and Citizenship for deportation proceedings to proceed formally. In the application, it was asserted that it was intended that upon his release into the community Mr Fox would be deported to the United States of America – the country of his citizenship and from where he migrated to Australia in 2002. Correspondence from the Department of Immigration and Citizenship indicated that the visa permitting Mr Fox to be in Australia would cease immediately upon his release from detention.
The Legislative Scheme
The purpose of Part 8A of the Criminal Law Consolidation Act is to provide a scheme for the detention or release of defendants who suffer a mental impairment and as a consequence are acquitted of the charged offence.[1] Division 4 of Part 8A concerns the disposition of persons declared to be liable to supervision under that Part.
[1] R v Bober (No 3) (2010) 107 SASR 165, [6].
Pursuant to section 269O, when a person is declared liable to supervision under Part 8A of the Act, the court may release the person unconditionally or make a supervision order, either committing the person to detention under Part 8A or releasing the person on licence subject to conditions decided by the court. Part 8A contemplates treatment during detention and on licence. If a supervision order is made, the section requires the court to fix a term limiting the operation of the supervision order. I undertook a full consideration of this process and the issues arising in Bober (No 3).[2]However, in the present application, I am concerned with section 269P of the Act.
[2] R v Bober (No 3) (2010) 107 SASR 165.
During the limiting term, a court may vary or revoke a supervision order. Section 269P provides:
(1)At any time during the limiting term, the court may, on the application of the Crown, the defendant, Parole Board, the Public Advocate or another person with a proper interest in the matter, vary or revoke a supervision order and, if the order is revoked, make, in substitution for the order, any other order that the court might have made under this Division in the first instance.
(2)If the court refuses an application by or on behalf of a defendant for variation or revocation of a supervision order, a later application for variation or revocation of the order cannot be made by or on behalf of the defendant for six months or such greater or lesser period as the court may direct on refusing the application.
In determining whether to release a person, or release a person on licence, a court must apply the principle as stated in section 269S of the Act, which provides:
In deciding whether to release a defendant under this Division, or the conditions of a licence, the court must apply the principle that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 269T(1) outlines the matters to which the court is to have regard in deciding proceedings under Division 4:
(1)In deciding proceedings under this Division, the court should have regard to—
(a)     the nature of the defendant's mental impairment; and
(b)     whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and
(c)     whether there are adequate resources available for the treatment and support of the defendant in the community; and
(d)     whether the defendant is likely to comply with the conditions of a licence; and
(e)     other matters that the court thinks relevant.
Section 269T(2) provides that a court cannot release a defendant, or significantly reduce the degree of supervision to which a defendant is subject unless the court:
(a)has considered at least three reports (expert reports) each prepared by a different psychiatrist or other appropriate expert who has personally examined the defendant, on—
(i)    the mental condition of the defendant; and
(ii)     the possible effects of the proposed action on the behaviour of the defendant; and
(b)has considered the report most recently submitted to the court by the Minister under this Division; and
(c)has considered the report on the attitudes of victims and next of kin prepared under this Division; and
(d)is satisfied that—
(i)    the defendant's next of kin; and
(ii)     the victim (if any) of the defendant's conduct; and
(iii)    if a victim was killed as a result of the defendant's conduct—the next of kin of the victim,
have been given reasonable notice of the proceedings.
[Emphasis in original.]
Section 269V concerns custody, supervision and care of a person under the Part 8A scheme, and relevantly provides:
(1)If a defendant is committed to detention under this Part, the defendant is in the custody of the Minister and the Minister may give directions for the custody, supervision and care of the defendant the Minister considers appropriate.
(2)The Minister may—
(a) place the defendant under the custody, supervision and care of another; and
(b) if there is no practicable alternative—direct that a defendant be kept in custody in a prison.
…
Section 269Q and other provisions in Part 8A make it apparent that a function of Part 8A is that there shall be a review, at least once in each year, of the mental health of those who are subject to supervision orders with power in the court to make such fresh orders as are appropriate in the circumstances.[3] The factors to which regard should be had when making these orders are listed in section 269T, as set out above.
[3] R v B, P (2007) 97 SASR 448, [27].
As earlier mentioned, the court may make an order releasing the person unconditionally, releasing the person on licence on conditions specified in the licence, or reducing the limiting term. Pursuant to section 269U, if the person is released on licence, later contravenes or is likely to contravene a condition of the licence, the court may, on application, review the supervision order and confirm it, amend the order so that it ceases to provide for release on licence and provides instead for detention, or vary the conditions of the licence.
The principle referred to above - that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community - is a principle which I am obliged to apply in considering the within application. This principle has been described as the cornerstone of the operation of the statutory scheme.[4] Part 8A of the Act has a primary concern with the safety of the community,[5] and section 269S recognises this, while at the same time recognising the need to keep restrictions on a person’s freedom to a minimum, consistent with that safety.
[4] See Advertiser Newspapers Ltd v V (2000) 117 A Crim R 141, [24]-[27]; R v Weiss (2001) 214 LSJS 357, 365-366; R v Ridings [2008] SASC 366, [16].
[5] See R v Draoui (2008) 101 SASR 267, [44]; R v Bober (No 3) (2010) 107 SASR 165.
Factual and Procedural Background
I heard oral evidence from three psychiatrists, reports from whom I received in accordance with section 269T of the Act. I also heard evidence from Mr Fox, and his mother, Dina Fox.
Before I turn to consider in any detail the opinions expressed in the medical reports, and the oral evidence given by the psychiatrists, it is appropriate to say something more by way of background. A review of the medical reports allows the following background of Mr Fox to be summarised.
Mr Fox moved to Australia from the United States with his father in early 2002. He was admitted to Glenside Hospital with a manic episode of bipolar disorder during September 2003. In June and July of 2004, Mr Fox spent further time in Glenside. In February 2005, he spent time in prison and later in James Nash House, a forensic mental health treatment facility as a result of an allegation of rape made against him, of which he was later acquitted. In October 2005, he was discharged from James Nash House and returned to prison.
Between 19 January 2007 and 2 March 2007, Mr Fox committed many offences, including assaulting nursing staff, assaulting police officers, assaulting security guards and members of the public. He was found not guilty of this offending by reason of mental incompetence and was subject to a supervision order and detention, with a limiting term of 12 months being fixed.
On 11 March 2007, while in Glenside, Mr Fox punched a nurse and overturned a table at a psychiatrist. He had been transferred from James Nash House to Glenside on 4 March 2007, but having been noted to have assaulted various people including staff during that time, he was eventually transferred to Yatala Labour Prison as high risk. Mr Fox was re-admitted in James Nash on 4 April 2001, and was discharged on 17 April 2007.
On 12 November 2007, the incident occurred that gave rise to the charge of attempted murder the subject of the supervision order to which this application relates. The charge arose out of an incident which occurred when the defendant was residing at the Metropolitan Hotel in Grote Street, Adelaide. Acting without provocation, he inflicted multiple and severe stab wounds to one of the employees at the hotel. When a Judge of this Court was later called on to fix a limiting term pursuant to the Act, he made the following findings with respect to the attack:
The attack on the victim was particularly serious. He received 16 stab wounds to his head, torso, legs and hands. The victim said that the defendant appeared to be in a trance at the time. The defendant also kicked the victim. The victim has undergone extensive medical treatment including the removal of his spleen. He has also been treated by a psychologist for Post Traumatic Stress Disorder and has not been able to return to work. At his request I have viewed the photographs of his injuries. As I have said, the attack was completely unprovoked.
Mr Fox was admitted to James Nash House on 15 November 2007 and remained there until 12 February 2008. During this time Mr Fox assaulted staff and other patients and made threats against staff. He was placed in seclusion.
In February 2008, Mr Fox was discharged from James Nash House to prison at Yatala as a result of an application by the Director of Public Prosecutions to revoke the section 269 order, such application having been made at the request of James Nash House.
For the incident at the hotel, Mr Fox was charged with attempted murder and in the alternative, with aggravated causing serious harm with intent to cause serious harm. He raised the defence of mental incompetence and elected to be tried by Judge alone. The Director of Public Prosecutions conceded that at the time of the relevant offending, Mr Fox was mentally incompetent to commit the offences. The psychiatric evidence suggested a severe bipolar disorder that led to manic episodes and violent behaviour and a personality disorder of the antisocial type. The trial Judge accepted the psychiatric evidence and recorded a finding that Mr Fox was mentally incompetent to commit the offences. The trial of the objective elements of the offences followed and it was accepted by counsel for Mr Fox that the evidence placed before the Court established those elements. A verdict of not guilty was entered, and the trial judge declared that Mr Fox was liable to supervision under Part 8A of the Act. The Judge considered it not to be an appropriate case for the release of Mr Fox on licence, and made an order committing him to detention, with a limiting term of 13 years being fixed. In November 2008, Mr Fox was admitted to James Nash House and the limiting term was fixed by the Judge on 4 December 2008.
In about mid-July 2009, Mr Fox ceased taking the prescribed medication for his psychiatric state. On 28 August 2009, he singled out a member of staff at James Nash House and said “I’m going to get you, even if it takes 13 years, I’m going to kill you, you mother fucker.” He also threatened that if he returned to Yatala, he would organise assaults against nursing staff at James Nash House using fellow prisoners. The following day he said to a staff member “look over your shoulders forever”. Further threats were made to staff members at James Nash House including general threats that James Nash House would always be at risk. He later retracted this threat.
On 3 September 2009, following two further incidents Mr Fox was transferred at his own request to Yatala, initially to E Division. He reportedly assaulted another prisoner and spent four weeks in G Division – the highest security section in Yatala. Within a few hours of returning to E Division, he again assaulted a prisoner. He was transferred back to G Division.
On 3 November 2009, Mr Fox pleaded guilty to an indecent assault that occurred prior to his incarceration. He was sentenced to a term of imprisonment. This gave Mr Fox a dual status in Yatala; that is, as a prisoner and as a forensic patient. However, he now continues to be held only as a forensic patient. He has been held in G Division since October 2009, due to a high risk of aggression towards other inmates. I was informed that Mr Fox remains on the waiting list to be returned to James Nash House, however, as will become apparent later in these reasons, it is unlikely that he will reach the front of that list in the foreseeable future, as he currently has no psychiatric issues and thus others become a priority.
Doctor Brereton
William Brereton, a forensic psychiatrist, in his report observed the following with respect to the files and records on Mr Fox in relation to his conduct in James Nash House and Yatala:
I note from Mr Fox’s offender history report that he has convictions for assault, including an indecent assault, without a finding of mental incompetence, some of the dates include April 2004, February 2005 and May 2006. For the purposes of risk assessment within our service, a comprehensive review of Mr Fox’s notes has been undertaken and this has demonstrated a remarkably high number of incidents of risk ranging from verbal abuse, intimidating behaviour (including threats to kill), subverting ward rules and violent incidents. While in James Nash House, Mr Fox has required management in seclusion with unusually high frequency and for unusually lengthy periods. It is of note that in the time Mr Fox has spend in James Nash House since January 2008, there have been approximately fifty incidents of aggressive, threatening, hostile or abusive behaviours including four violent incidents (one which was a premeditated ambush of a fellow patient). This has occurred in the absence of psychiatric illness or drug use and despite significant periods segregated from other patients, meaning the rate of incidents during periods he has had access to the ward is extremely high. During the same period, my understanding from the paperwork I have seen is that Mr Fox has been involved in approximately eight violent incidents while in prison and this is despite being managed for most of his time in isolation in G Division without the opportunity to assault others. In fact, when Mr Fox was last transferred from G Division to a mainstream unit, he assaulted his cell mate the same day.
With respect to how Mr Fox presented at interview, Dr Brereton opined:
During the interview, Mr Fox did not display any signs or symptoms of mental illness. During my interviews with Mr Fox over time there does not appear to have been any change in his outlook or attitudes. He sees his violence (in prison and James Nash House) as acceptable and necessary, he has not remorse for his violence (even that perpetrated in the community) and takes no responsibility for his actions, with detailed explanations for why it is the fault of others. He sees no reason to change and will not engage meaningfully in any attempt to explore his behaviour from a psychological perspective. His response is to talk about specific incidents one at a time and justify why he was violent.
Dr Brereton further expressed the following opinion in his report:
It is of note that Mr Fox has been documented to have been using significant quantities of cannabis and alcohol prior to all his hospital admissions. Also, although his behavioural problems have persisted, his symptoms of psychiatric illness have usually settled quickly when these substances have been withdrawn. Since early 2008 he has been free of drugs of abuse, he has also been, for the most part, free of therapeutic medication (or only prescribed a very low dose). In this time, and despite being in stressful situations, his mental state has been stable with no symptoms of psychiatric illness whatsoever. In view of this, in my opinion, Mr Fox’s diagnosis is not that of a Bipolar Affective Disorder but rather a ‘Mental Disorder due to psycho-active substance use’, with the Mental Disorder being specifically a ‘Psychotic Disorder with predominantly manic symptoms’….

Dr Brereton went on to discuss what he described as Mr Fox’s severe anti-social personality disorder, such disorder being very difficult to treat. He concluded:
Taking all the above information into account, in my opinion, Mr Fox is a high risk of further harm to others whether in prison or in the community, even if free of drugs. Were he to return to drug and alcohol use, the disinhibiting effects of the intoxicants alone would increase the risk and if drug use led to further symptoms of psychiatric illness then the risk would increase even further. I believe that it is likely Mr Fox would use drugs again.
Dr Brereton considered that Mr Fox has a mental disorder due to psycho-active substance abuse and severe dissocial personality disorder. On the topic of Mr Fox’s return to the United States, Dr Brereton considered that if Mr Fox is deported to the United States that “he needs to be initially in custody…stepped down through security and…to have therapeutic input in that time”.
Dr Nambiar
Narain Nambiar, a forensic psychiatrist, considered that Mr Fox has a bipolar mood disorder and an antisocial personality disorder. He held grave concerns about Mr Fox’s ability to comply with licence conditions in South Australia. Later in his report, he concluded:
Mr Fox has a diagnosed Bipolar Disorder, which has remained in relative remission over the last 12 months, despite no treatment. This is not entirely unusual as some individuals have infrequent episodes that are only triggered by specific circumstances, which in Mr Fox’s case may include the use of illicit substances. Given the fact that he has been noncompliant with treatment provided in the past and is oppositional to such treatment, I believe that it is not necessarily in his best interest to enforce treatment at this point in time.
Dr Nambiar acknowledged that risk factors would still play a part if Mr Fox returned to the United States, but felt he was more likely to cooperate as he had expressed a desire to return.
Dr Nambiar observed the following in his report:
It would be entirely up to Mr Fox as to whether he would seek treatment in the United States but from what he has indicated to me during my interview on this occasions, it would seem to me that it is not his intention to pursue any follow-up, but there may be the potential for his mother to have some influence on him once he is settled in Washington DC.
Finally, Dr Nambiar concluded:
I would suggest that it would be detrimental to Mr Fox’s mental state to remain institutionalised for any prolonged period of time, given the fact that in ‘G’ Division he will not receive any rehabilitation, which defeats the purpose of his detention. On the other hand he would not be suited to James Nash House in the short-term because he would appose the protocols put in place there and very quickly get into conflict with staff and patients alike, which would also be as equally counterproductive to his rehabilitation.
Mr Fox poses no immediate risk to the community, based on his Bipolar Disorder. On the other hand, he has indicated that should he be released into the community in South Australia, that he would have no choice but to revert to his usual pattern of behaviour, re-establishing contacts with undesirable individuals, which would ultimately result in no good and the potential for further harm to others.
Dr Raeside
Craig Raeside has had contact with Mr Fox since 2005. It is Dr Raeside’s opinion that Mr Fox suffers from a bipolar disorder, often associated with violent behaviour which is unprovoked when manic. He is also of the opinion that Mr Fox is aggressive and violent towards others when provoked at times, even when his bipolar disorder is well controlled. He considered that Mr Fox has a significant underlying mixed personality disorder with anti-social and narcissistic traits, which is a significant factor in his overall risk of harm and dangerousness.
Dr Raeside also noted that Mr Fox has a history of substance abuse dating back to his teenage years. He is of the view that the combination of the bipolar disorder, mixed personality disorder and the substance abuse offers a particularly poor prognosis for the future as each condition tends to interact and worsen the other. Dr Raeside holds the view that if Mr Fox were in the community and exposed to drugs the chances of his remaining drug free are very low.
Dr Raeside expressed support for Mr Fox’s return to the United States, and opined that the mental health services in Washington DC would be well qualified to address conditions such as that suffered by Mr Fox.
Dr Raeside gave evidence that Mr Fox’s incarceration in G Division has positive and negative effects: it is a highly structured environment and opportunity for Mr Fox to behave badly is curtailed; being positive not just for the protection of others, but also within his own psychological world, potentially making him feel more secure. However the environment reduces his social skills, increases the risk of him becoming institutionalised and in the longer term, is generally detrimental to his rehabilitation.
In his report, Dr Raeside foreshadowed a concern:
There are obviously some concerns about his safety in general whilst en route. His history is one that leads to quick impulsive and explosive violence when triggered. Obviously this could occur whilst en route, but I would not think that this would be due to a mental illness, but rather due to his underlying personality disorder.
But later concluded:
Therefore, I would support [Mr Fox] being returned to the USA to reside with his mother where he could receive further psychiatric treatment. I believe that currently his psychiatric state is amenable to travel and see no psychiatric contraindications at present.
Mr Fox
Mr Fox gave evidence that if he were released on licence, his intention is to return to the United States and to participate in the program provided by “Community Connections”, a mental health centre in Washington DC, with a view one day to look for part-time work and further schooling. He stated that he had no intention of smoking marijuana again. In cross-examination, Mr Fox stated that he did not wish to take medication, and his willingness to participate in treatment programs if he remained in South Australia was qualified. He did however state a willingness to participate in courses such as that for anger management and drug and alcohol counselling, were it presented to him in G Division at Yatala.
Dina Fox
Although the attitudes of the victim and next of kin are clearly relevant, as White J expressed in Ridings,[6] they are not to govern the application.
[6] R v Ridings [2008] SASC 366, [16].
As earlier mentioned, Dina Fox gave evidence before me. She expressed her concern for the conditions in which Mr Fox was being kept in G Division in Yatala and what she considered to be the consequent negative effects on his mental health. She gave evidence that she had witnessed a change in Mr Fox’s behaviour since he had been in G Division, that he had become more volatile and that he is “really raging [on the] inside”.
Dina Fox gave evidence of the enquiries she had made as to how to facilitate Mr Fox’s removal from Australia and placement into treatment programs in Washington DC, where she usually lives. She said that “I will make sure that he is housed and that he has whatever needs I can provide him.”
It is evident that Dina Fox holds concerns for her son’s welfare and wishes him to return to the United States.
The Application and Proposal
As earlier mentioned, Mr Fox filed for a variation of the supervision order so that the order ceased to provide for detention but instead allowed for the release of him on licence to the Grove Closed Forensic Rehabilitation Unit from where he could be placed in the custody of the Department of Immigration and Citizenship for deportation proceedings to proceed formally.
In the application, it was stated that it was intended that upon his release into the community Mr Fox would be deported to the United States. A number of possible conditions were proposed by counsel for Mr Fox, including that the release would not take place without adequate notification being given to relevant authorities; that an undertaking be given by the Department of Immigration to keep Mr Fox in immigration detention until deportation arrangements have been made; that Dina Fox enter into a written agreement to accompany Mr Fox on his return to the United States and provide him with appropriate accommodation and financial support; and, that Mr Fox provide a written undertaking that he will attend at Community Connections within 48 hours of his return to Washington DC.
Counsel for Mr Fox submitted that evidence before the Court allowed the conclusion that the United States has more and better resources to deal with Mr Fox and his conditions than exist in South Australia where the only available place to accommodate Mr Fox is a maximum security prison. Apparently the American authorities have been made aware of the situation and would be kept advised of arrangements should Mr Fox be released and deported. Attention was drawn to a treaty in existence between the Australian Government and the government of the United States pursuant to which both governments have agreed to assist each other in proceedings related to criminal matters including “transferring persons in custody for testimony or other purposes” and “any other form of assistance not prohibited by the laws of the requested state”.[7]
[7] Treaty with the Government of the USA on Mutual Assistance in Criminal Matters, and Exchange of Notes (30 April 1997) Australian Treaty Series 1999 No 19 (entered into force 30 September 1999, Article 2. See Appendix 1).
An issue arose during the course of submissions regarding whether the “safety of the community” referred to in section 269S of the Act and contemplated by the scheme of Part 8A, was restricted to the community in South Australia or Australia, or whether in the circumstances of the within application it was proper to consider the community in the United States.
Counsel for Mr Fox submitted that the Court is restricted in taking into account the safety of the United States community by virtue of section 5F of the Criminal Law Consolidation Act. Part 1A of the Criminal Law Consolidation Act deals with territorial application of the criminal law, and section 5F provides:
(1)The law of this State operates extra-territorially to the extent contemplated by this Part.
(2)However—
(a)     this Part does not operate to extend the operation of a law that is expressly or by necessary implication limited in its application to this State or a particular part of this State; and
(b)     this Part operates subject to any other specific provision as to the territorial application of the law of the State; and
(c)     this Part is in addition to, and does not derogate from, any other law providing for the extra-territorial operation of the criminal law.1
Note—
1For example, the Crimes at Sea Act 1998.
It was contended that the Court should take into account the ability of the United States Government to safeguard its own community in relation to one of its own citizens, compared to the inability of South Australian authorities to provide accommodation for Mr Fox other than in G Division at Yatala.
Counsel for the Director submitted that the Court clearly has a duty to protect the community in South Australia and probably to take all available steps to protect the community in the United States. It was said that section 5(F) would not exclude considerations of international comity. On the topic of the welfare of Mr Fox, it was contended that the Court also has a duty to ensure that Mr Fox is not left without the treatment and support he needs. A removal to the United States without any means of enforcing that treatment and/or supervision would be setting Mr Fox up to fail, notwithstanding the good intentions of his mother or indeed himself.[8] Finally, it was said that where there is a process to give effect to considerations of international comity, protect the United States community and provide the necessary support and supervision for Mr Fox, that process should be employed.
[8] R v T (1999) 75 SASR 235, [51]-[52], [54].
Counsel for Mr Fox accepted that if an application for release on licence into the community in South Australia were made; it would in all probability be refused on the basis of the medical evidence, having regard to the risk to the community. Counsel submitted that although potentially the American community would be exposed to the same risk, the American system is better equipped to deal with Mr Fox than the Australian system. It was accepted that there would be no obligation on the part of Mr Fox to undergo treatment in the United States or to be subject to any particular control. It was further accepted that in addressing the application as proposed, I am to proceed on the basis that there is a risk that Mr Fox, if he returned to the United States, would be at large; that is, there would be no legally enforceable restrictions on Mr Fox when he arrived in the United States. Counsel contended that the South Australian legislation is primarily directed towards the safety of the South Australian community and that that was the primary concern of the court on an application such as the within application.
Counsel for Mr Fox drew the Court’s attention to MacPherson, a decision of the District Court of New South Wales, where, under a similar legislative scheme to Part 8A of the Criminal Law Consolidation Act, an offender was released into the supervision of his mother to attend the Commonwealth Department of Immigration and the Consul-General of Canada to do all things necessary to obtain as rapidly as possible a visa to enable him to leave Australia and return to his home country of Canada.[9] The offender in those proceedings was a young man who had imported drugs on his person into Australia and had been found to be mentally ill at the relevant time. A key factor in the decision of Judge Finnane in that case was the apparent certain availability of appropriate treatment for the offender in Canada, and the uncertainty of such treatment while he remained in detention in Australia. However, I consider that decision to be of little assistance. Although the drug offending in that case was serious, Mr Fox in the within proceedings has such a history of violence, the considerations of the safety of the community make this case quite distinct from MacPherson.
[9] R v MacPherson [2010] NSWDC 132.
Consideration
The Judge who dealt with Mr Fox on the charge of attempted murder and who set the limiting term, as mentioned, concluded that in light of the psychiatric report, it was clear to him that it was a case where it would be inappropriate to release the defendant on licence at that stage. The Judge went on to observe the following:
The defendant’s prognosis is poor. I should also say that I am concerned about the suggestion that the defendant could be released on licence within a few months in anticipation that he would be deported to another country. It would be necessary for the Court to hear further submissions on this proposal before a decision to release on licence could be made.
To that end, and in adherence to the terms of the legislative scheme, I have received reports and heard evidence; psychiatric evidence primarily directed to whether, if released on licence, Mr Fox would be a danger to the community. The experts are agreed in concluding that Mr Fox would present a risk to the community and were he to take illicit drugs and consume alcohol, which it is agreed is likely, the risk would be even greater.
The Director contended that it is clear that Mr Fox is not suitable for release into the community at the present time because of the danger he represents to others. It is also clear, it was said, that Mr Fox is unlikely to comply with conditions of licence.
It is far from ideal that Mr Fox, a person who has been found not guilty of the offence of attempted murder, is being detained in a maximum security division of a prison. It is difficult not to have, and indeed, express, concerns about this. However, the question which I am to consider is whether it is appropriate to release Mr Fox on licence.
The savagery of the attack on the victim it not to be overlooked. Mr Fox’s outbursts of violence since being placed in detention are frequent and serious. I accept that Mr Fox’s prognosis in terms of the likelihood of him abstaining from drugs and alcohol and his willingness to participate in ongoing therapeutic help, were he to be released on licence, is poor. The evidence does not allow me to have confidence in the assurances given by Mr Fox that he would enter into a regime of treatment and follow directions and instructions.
James Nash House is unable to accommodate Mr Fox due to his violence and aggression. E Division at Yatala is unable to house Mr Fox for the same reasons. In these circumstances, it is difficult to conclude that his release on licence, even with strict conditions, would be consistent with the safety of the community. However, this is to be understood against the background of the psychiatric evidence indicating that a significant factor in Mr Fox’s behaviour, particularly at James Nash House, is his desire not to be there, and that his desire to reside back in the United States may influence his behaviour is a positive way.
In my view, allowing Mr Fox to be released on licence and for deportation to then occur, would, without any degree of control, place the community in this State and in the United States at risk. His release would not be consistent with the safety of the community.
Concerns were raised as to the harshness of the environment in G Division, particularly having regard to the fact that Mr Fox was found not guilty of the offence, which offence gave rise to the supervision order. This included adequate nutrition, longer visiting times and better access to facilities in his cell. However, it is clear that Mr Fox’s ongoing aggressive behaviour limits the availability of accommodation options.
I was informed that approach could be made administratively to seek to address the harshness of the regime to which Mr Fox is subject in G Division. However, it is to be recalled that Mr Fox is in G Division because of his own aggressive behaviour. Although one can be sympathetic, all the Court can do on the present application is to urge the authorities to address Mr Fox’s visiting hours, his nutrition and the facilities in his cell.
There is one final matter to be noted before I turn to consider a process alternative to the one proposed by the applicant. In these reasons I have reviewed Mr Fox’s background and conduct in considerable depth. This is so as I consider that in the event that he is at some time to be released to the United States, it is important that those involved understand his background and his illness.
An Alternative Process - International Transfer of Prisoners
The Director drew attention an alternative process available to Mr Fox to seek his transfer to the United States. It was the Director’s submission that this was the appropriate avenue to be followed.
Although Mr Fox has brought an application pursuant to section 269A of the Criminal Law Consolidation Act for release on licence to allow for deportation, it was submitted by the Director that the more appropriate course would be to have the matter dealt with under the International Transfer of Prisoners Act 1997 (Cth) and the Transfer of Sentenced Persons Convention (CETS 112) which came into force on 21 March 1985 and to which Australia and the United States are parties. The effect of this procedure is that Mr Fox could apply to the Commonwealth Government to be transferred to his home state in the United States. The relevant Acts and Regulations are:
-International Transfer of Prisoners Act 1997 (Cth);
-International Transfer of Prisoners (South Australia) Act 1998 (SA); and
-International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002 (Cth) made in pursuance of the Commonwealth Act.

The Commonwealth Act facilitates the transfer of prisoners between Australia and countries with which Australia has entered agreements so that prisoners may spend their time in custody in their countries of nationality or in countries with which they have community ties. Those agreements are entered into under the Transfer of Prisoners Convention, to which I am advised Australia and the United States are both parties.
The objects of the South Australian statute are to give effect to the scheme of international transfer of prisoners set out in the Commonwealth Act by enabling such prisoners to be transferred to and from South Australia.
For the purposes of the Commonwealth Act, a “national of a country” is defined in section 4 as meaning “a person who is a citizen of the country under the law of the country.” Mr Fox is a citizen of the United States and falls under the provisions of the Commonwealth Act. Being a national of a country, or having community ties with a country is a prerequisite for transfer to that country.
Although the Convention and the Commonwealth Act refer to “sentenced persons”, it is clear from the definition of “sentence of imprisonment” contained in section 4 of the Commonwealth Act that that Act covers a wide range of persons who have been deprived of their liberty by an order of a court or a tribunal. “Sentence of imprisonment” is defined as meaning “any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a determinate or indeterminate period in the exercise of its criminal jurisdiction and includes any direction or order given or made by the court or tribunal with respect to the commencement of the punishment or measure”.
The definition of mentally impaired prisoner is a further indication that the Commonwealth Act has a broad application and would encompass a person such as Mr Fox. Mentally impaired prisoner is defined as meaning:[10]
(a)a person serving a sentence of imprisonment on the acquittal of the person for an offence on the ground of mental impairment; or
(b)a person serving a sentence of imprisonment because the person has been found mentally unfit to stand trial.
[10] International Transfer of Prisoners Act 1997 (Cth) section 4(1).
An application for transfer from Australia can be made either by Mr Fox or his legal representatives to the Attorney-General of the Commonwealth in the manner prescribed in the Regulations[11] or by the Attorney-General of the Commonwealth.[12]
[11] International Transfer of Prisoners Act 1997 (Cth) section 16.
[12] International Transfer of Prisoners Act 1997 (Cth) section 18.
Inter alia, consent to the transfer would have to be given by the Attorney-General of the Commonwealth and the State Minister in South Australia who administers the transfer of prisoners;[13] by Mr Fox if he is capable of providing consent or if not, by his legal representatives;[14] and, by the relevant authorities in the United States.[15]
[13] International Transfer of Prisoners Act 1997 (Cth) sections 5, 10.
[14] International Transfer of Prisoners Act 1997 (Cth) section 6, 10.
[15] International Transfer of Prisoners Act 1997 (Cth) section 10.
The provisions of the Commonwealth Act overcome the practical difficulties were Mr Fox to be released under licence, first into the South Australian community prior to being deported and then into the community in the United States. Section 47 of the Commonwealth Act provides, inter alia, that on transfer the sentence of imprisonment imposed by the Australian Court ceases to have effect in Australia and “the sentence of imprisonment is taken for all purposes in Australia to be a sentence of imprisonment imposed by a court of the transfer country and the prisoner to be a prisoner of the transfer country”. The provisions of Articles 9 and 10 in Schedule 1 to the Regulations are also relevant to the issue of the continued enforcement of the order of detentions by the United States.
Further Matter
During the hearing I asked if approach could be made to Correctional Services about Mr Fox’s conditions of detainment in G Division at Yatala Prison, and in particular whether those conditions could be ameliorated given Mr Fox’s status as a detainee and not a prisoner. On the same occasion I asked that counsel seek further information and inform the Court as to how long a transfer under the International Transfer of Prisoners Act would take.
As a result of these enquiries the following information has been obtained.
By letter to his colleague Dr O’Brien dated 11 April 2011, Dr Brereton made some observations in relation to Mr Fox, having in particular read the transcript of proceedings before me on 23 March 2011. Dr Brereton notes the difference in opinion between on the one hand himself and Dr Furst, and on the other, Dr Nambiar and Dr Raeside, as to from what disorder Mr Fox was suffering at the time of the offence, but emphasises that all doctors are in agreement that Mr Fox has been entirely free of symptoms of mental illness for at least three years and four months, despite refusing medication for nearly all that time. Dr Brereton observed:
… Throughout this time, Mr Fox has continued to display aggressive behaviour and all the clinicians agree that this is due to his antisocial personality disorder. In prison he has been assessed and found to fulfil the criteria to be defined as having a psychopathic personality (in basic terms, a severe form of an antisocial personality), according to Hare’s Psychopathy Check List.
While Mr Fox may have been displaying psychiatric symptoms at the time of his offence, which led him to being found Not Guilty by Reason of Mental Impairment, his ongoing management difficulties for over three years now have been the result of his personality alone and not contributed to by any symptoms of mental illness.
On the topic of treatment, Dr Brereton observed:
In her letter to you, [Counsel for the Director] said, “His Honour expressed concern that detaineees held in prison environments were being treated as if they had been convicted of criminal offences and were being punished for their offending”. [Counsel for the Director] also said, “Is there any arrangement between the prison authorities and Forensic Mental Health to enable these people to have additional access to treatment, rehabilitation or privileges, in light of their unique circumstances if not is there any reason why such an arrangement could not be entered into”. I agree that we should continue to carefully monitor Mr Fox for psychiatric morbidity and strive to find ways to ameliorate his risk and consider stepping down the degree of security in which he is held in the future, but we must recognise that Mr Fox is placed in G Division as it has proven to be the only place his risk to others (staff patients and prisoners) can be adequately managed and this risk is not due to a mental illness that might allow us a clear target for treatment. Mr Fox’ aggressive behaviour arises out of his personality and this is distinct from the reasons for which he was found mentally incompetent. It is extremely difficult to help somebody with a psychopathic personality to alter their behaviour and virtually impossible without their meaningful cooperation and willingness to make considerable effort themselves, which, to date, has not been evident in Mr Fox.
Dr O’Brien, having liaised with Drs Brereton and Furst, and in particular having read the letter of Dr Brereton referred to immediately above, and also having been in contact with the Department of Correctional Services by email dated 12 April 2011, expressed the opinion that very little additional therapeutic input is either necessary or desirable. Dr O’Brien went on to say:
… Formally, [Mr Fox] is assessed by Dr Furst at G Division every six weeks but Dr Furst advises me that he always liaises with the staff at G Division about Mr Fox’s current status and whenever he attends there, not infrequently on a weekly basis. I have now asked Dr Furst to formally see Mr Fox every four weeks, or more frequently if there is a clinical need, in as much as possible.
He continued:
[The Department of Correctional Services] advises me that Mr Fox has certain privileges with respect to access to a television set and weekly “buys”. Additionally, I have been advised this afternoon that a further concession can be made to Mr Fox namely:-
If [Mr Fox’s] mother or [Mr Fox] himself requests additional visits to YLP Management, an additional visit once a fortnight will be looked upon favourably by [the Department of Correctional Services] and every attempt will be made to facilitate it.
In response to a letter from Mr Fox’s solicitor that the Minister for Mental Health and Substance Abuse intervene in Mr Fox’s matter, the Minister, based on advice received from Adelaide Health Service who is responsible for the Forensic Mental Health Service that James Nash House does not currently contain a suitable area to manage Mr Fox as it does not have the level of security or the resources to manage his violent and persistent behaviours, declined to intervene in the current care plan and accommodation of Mr Fox. The Minister advised that he did not have the legislative power to intervene in the clinical treatment of patients.
In May and June 2011, Mr Fox’s solicitor contacted Dr O’Brien and advised him that Mr Fox’s mother has now returned to the United States to live but that she had made enquiries as to possible continuing treatment, particularly psychological treatment, of Mr Fox. It is to be recalled that Dr O’Brien is the service and clinical director of the Forensic and Mental Health Service at SA Health. In response to the solicitor’s enquiry, Dr O’Brien wrote:
I have previously indicated that this is a matter under review. Whilst he remains in G Division, at least in my opinion, psychological treatment, in whatever form is considered desirable, is best mediated through the Department for Correctional Services. I have already discussed this with Mr John Cooper, Senior Psychologist, Yatala Labour Prison. A behavioural/cognitive approach may have to be considered but there are certain restrictions on the implementation of this, because of this location and security considerations. A consistent and well-constructed approach would be most desirable. Implementation of such an approach requires further detailed discussion and it is for this reason that I have included both Mr Cooper and Mr Fox’s current treating psychiatrist, Dr Paul Furst, in this correspondence. You may need to directly approach Mr Cooper himself for the further discussion of possible treatment opportunities of a psychological nature.
Mr Fox’s solicitor was referred to John Cooper, a senior psychologist, in order to ascertain psychological treatment options for Mr Fox. In response, Dr Anne-Marie Martin, the executive director of the Offender Development Directorate at the Department of Correctional Services, wrote a letter dated 1 July 2011. In that letter she advised:
In response to your request I can advise that Mr Fox’s case continues to be reviewed at regular intervals regarding the appropriateness of his placement and treatment options. I can confirm that this is ongoing and was discussed as recently as 30 July [sic] 2011 by a multi-disciplinary team. Mr Fox’s suitability for psychological intervention is a highly complex issue and any proposed intervention would need to be well considered in terms of treatment readiness, responsivity issues and staff safety. At the most recent meeting it was requested that further information be sought to assist in this assessment process and the group agreed to reconvene at a later date.
In July 2011, the Court was forwarded a letter from the Minister for Correctional Services to the Crown Solicitors Office, regarding the possibility of an international transfer of Mr Fox pursuant to the provisions of the International Transfer of Prisoners Act. The Minister, in response to a request from the Crown Solicitors Office, wrote to the Commonwealth Attorney-General seeking an assurance that any application by Mr Fox to transfer to the United States would be processed expeditiously. The Minster for Home Affairs as the Minister responsible for international transfers advised in response that all applications are dealt with as expeditiously as possible, but that the process is a lengthy one. In particular, it was advised that in addition to the consent of Mr Fox himself, the following governments would be required to consent to the process: the Australian Government, the South Australian Government, the United States Government and the Government of the relevant State to which it is proposed Mr Fox be transferred.
In my view, there is much to be said in the circumstances of this case for consideration to be given by those advising Mr Fox to follow through the alternative process facilitated in part by the International Transfer of Prisoners Act. This is a relevant process which has the capacity to provide full protection to the community in South Australia and Australia but also provide the protection that the authorities in the United States think appropriate to protect the community. There appears to be an international scheme provided for, which is designed to deal with prisoners – including those subject to orders of the nature of that to which Mr Fox is subject. One might expect that in the circumstances of this case the authorities may expedite the process.
Conclusion
The application is dismissed.